Supreme Court set to allow abortions in medical emergencies, briefly-published opinion shows

The Supreme Court is poised to allow abortions in medical emergencies, a draft opinion briefly published on the court’s website and obtained by Bloomberg Law revealed.

Wednesday morning, a draft in the consolidated cases Moyle v US and US v Idaho was “inadvertently” published as the court issued other opinions. It was quickly removed.

The ruling – which is not final – shows a 6-3 breakdown with the court’s majority reinstating a lower court ruling that ensured hospitals in Idaho provide abortions in emergency medical situations but declining to issue a firm decision in the dispute. Instead, they will dismiss the case as improvidently granted – meaning the justices believe they should not have taken up the case.

According to the obtained draft, conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch will dissent.

The Independent has not viewed the document. It is unclear whether the opinion obtained by Bloomberg Law is a draft or the final decision.

Should the final opinion be consistent with the draft, the ruling would be a fragile victory for abortion rights advocates who have warned that pregnant people in states with strict abortion bans could face injury or death due to the laws in six particular states. However, because the court declines to make a firm decision it leaves the door open for future challenges.

Protesters gather near the Supreme Court in July to mark the second anniversary of the decision to end nationwide abortion protections (Bel Trew/The Independent )

The case comes out of Idaho, which enacted a strict abortion ban in 2022 that imposes criminal penalties on doctors who perform abortions but includes a narrow and vague exception to protect the life of a pregnant person.

That exception says a physician must use “good faith medical judgment” to determine whether an abortion is necessary to prevent a person from death. However, it fails to clarify what “good faith” means – leaving many doctors and hospitals susceptible to criminal penalties.

Texas, Arkansas, Mississippi, Oklahoma and South Dakota have enacted similar laws that use vague language, leaving pregnant people at risk of bodily harm or increased chance of death.

The Biden administration intervened, claiming the state law conflicts with EMTALA which requires emergency room doctors to use medical intervention necessary to stabilize a patient. However, the law does not explicitly mandate which medical treatments, like abortions, are necessary.

Reproductive rights activists outside of the Supreme Court at justices debate a near-total ban on abortion in Idaho (AFP via Getty Images)

The accidental release of the opinion marks the second time within two years that a major abortion rights ruling was released before the Supreme Court officially published it.

Politico obtained and published a draft of Justice Samuel Alito’s decision to overturn Roe v Wade in May 2022 before the court published the final ruling on June 24 of that year.

Patricia McCabe, the public information officer for the Supreme Court, said in a statement, “The opinion in Moyle v. United States, No. 23-726, and Idaho v. United States, No. 23-727, has not been released. “

“The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website. The Court’s opinion in these cases will be issued in due course,” McCabe added.

It is unclear when the court will officially release the official opinions in the cases. They are expected to release more opinions on Thursday and Friday.

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